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U.S. Constitutional Law and Customary International Law for Territorial Annexation

To develop an informed position on current issues in Hawaiʻi, such as the TMT (Thirty Meter Telescope) standoff on Mauna Kea, it is important to have an accurate understanding of the legal status of Hawaiʻi.

The purpose of this article is to address common misconceptions people have regarding territorial annexation as it relates to the Constitution of the United States and customary international law.

In Article I, Section 8 of the U.S. Constitution, the enumerated powers of Congress are domestic. Specifically, there is no enumerated power for annexation of foreign territory.

From Article II, Section 2 of the U.S. Constitution, regarding the President and Senate:

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”

This power was used by the United States to enter 9 treaties of cession, annexing 56 out of 58 acquired territories, over a period of 168 years (1783-1951). This is the self-evident pattern of customary international law regarding territorial annexation, followed consistently by the United States throughout its history.

The Indian Appropriation Act of 1871 and the Island of Palmas arbitration in 1925 legally prevented this power from being used for annexation of American Sāmoa. There were two failed attempts, in 1893 and 1897, to use this power for annexation of Hawaiʻi, both of which were due to less than two thirds approval of the Senate.

The context of Article IV, Section 3, of the U.S. Constitution, is clearly domestic:

“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

This power was used prematurely to admit Texas as a State in 1845 following two failed attempts, in 1837 and 1844, to pass a treaty of annexation for Texas in the U.S. Senate. The preliminary admission of Texas as a State in 1845 was followed by constitutional annexation of Texas as a Territory in 1848 through the Treaty of Guadalupe Hidalgo.

Therefore, since the Newlands Resolution claimed to annex Hawaiʻi as a Territory in 1898, and not admit it as a State, Texas is an invalid precedent. Furthermore, all 49 of the United States, including Texas, have a treaty of cession, while Hawaiʻi does not. This makes Hawaiʻi an unprecedented historical anomaly in violation of customary international law for territorial annexation, that in turn provides the evidence through which the U.S. constitution is interpreted.

88 out of 90 members of the U.S. Senate in 1898 opposed annexation of Hawaiʻi by joint resolution, because they held that it was unconstitutional in the context of customary international law, since Texas failed to provide a valid precedent. (youtu.be/yC4v0k0wd0Y)

The historical data for customary international law regarding territorial annexation, followed by the USA throughout its history, does not substantiate constitutional annexation of Hawaiʻi to the United States via joint resolution of U.S. Congress in 1898. This alleged annexation is an outlier in the data set—9 treaties annexing 56 territories in 168 years, plus the cession by American Sāmoa—that stands alone without precedent, both before and after the Newlands Resolution.

The provision in the U.S. Constitution for territorial annexation by a supermajority of the U.S. Senate is unequivocal when interpreted through this complete data set for customary international law. This is the appropriate context which must be included in any assessment of the claim of that Hawaiian sovereignty has been transferred to the United States.

Today, the typical American is oblivious to this complete data set regarding annexation of territory by the United States. However, this is not because access is restricted to these data, but due to generations of being indoctrinated by propaganda to the contrary. Therefore, instead of investigating the data, and interpeting it objectively, the typical American accepts the assumption that Hawaiʻi is the “50th State” as a foregone conclusion.

Hence, as will undoubtedly be demonstrated in comments on social media reacting to this article, Americans (and Americans-at-heart) will insist that Texas was annexed by joint resolution and not the Treaty of Guadalupe Hidalgo, since this underpins their belief that Hawaiʻi was annexed by joint resolution.

This unchallenged chain of assumptions, in turn, is a major factor underlying the belief that the TMT project has been legally approved for construction under American laws. However, by a score of 57 to 1, the data provided by customary international law fails to support the alternative hypothesis that the Hawaiian territory was annexed to the United States. In turn, these data invalidate the administration of U.S. laws in the Hawaiian territory.

Conversely, the data fails to reject the null hypothesis that the Hawaiian State has not been extinguished from its territory. Therefore, it cannot be concluded from customary international law that Hawaiʻi is part of the United States. Since occupation exists in the absence of annexation, and since both are mutually exclusive, the USA is in Hawaiʻi and not the other way around. In other words, Hawaiʻi is not part of the United States—nor has it ever been—without a treaty of cession.

Consequently, construction of the TMT would be classified as a war crime under international law through “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,” which is one of the grave breaches specified in the 1949 Geneva Conventions.

Keokani Marciel is a lifelong aloha ʻāina (Hawaiian patriot) and kanaka ʻōiwi (aboriginal Hawaiian) who holds a B.S. in Nutrition Science from the University of California at Davis, and an M.S. in Exercise Science from California University of Pennsylvania. In 2008, Keokani made a career change to mathematics education, and is now beginning an actuarial career. With his background, he brings a quantitative and scientific outlook to the discourse regarding the legal status of Hawaiʻi as an occupied nation-state.

25 thoughts on “U.S. Constitutional Law and Customary International Law for Territorial Annexation”

Aloha Keokani that is so true but, how do we reclaim our status as a Nation among Nation again? In your brief you state all the Laws and Facts that protects our Nation but what do we do now and are we american citizens or Kanaka Maoli subjects? Aloha Mau Keoki Puaoi

The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.

c) There is an acting government (Keanu Sai), LHG (Henry Noa), Ke Aupuni (Leon Siu), Atooi (Aleka Aipoalani), and Williamson Chang has recently advocated the formation of a “government in waiting.” This issue needs to be clarified.

d) This is dependent on a reconstituted Hawaiian Government emerging from part c.

Under the laws of occupation, current residents of Hawaiʻi acquire the citizenship of their parents. If you have an ancestor who was a Hawaiian Kingdom subject prior to August 12, 1898, then you are automatically a Hawaiian Kingdom subject by descent. Therefore, this automatically applies to anyone of aboriginal Hawaiian descent. This is true whether or not the USA legally classifies you as a US citizen.

This Papakuhikuhi/compendium and vital frame of reference in clear light of the US Constitution, presents a glaring violation on the part of the United States. Their stubborn & belligerent Occupation requires mediation on an International level. To convene an International Tribunal or UN inquiry would be a great place to start. Understanding that the nation of Switzerland has offered its willingness to serve as arbiter is enlightening, but time is of the essence. Hawaiian Nationals in the meantime are enduring atrocious policies of the US illegal Occupation. The need for resolution by members of the Family of Nations alliance is imperative.

Aloha Keokani, the requirements of Article 1 sections (a & b) can easily be complied with. The requirements for subsections (c & d ) is where the problem lies for most people. Ironically, you refered to the answer for this problem in the first 5 words of your last paragraph(Under the laws of occupation). If Hawaii is occupied as you stated, then those individuals claiming to have formed a so-called gov’t would have to have done it in compliance with the laws of occupation and HK law. If you research the way in which some of these so-called gov’ts were created it will not take long to realize they did it wrong. They did not follow HK law, the laws of occupation nor well established legal doctrines. They have the same Self-Declared status as the Provisional and Republic of Hawaii govt’s.

Aloha, it appears the article clearly addresses a rebuttal for the Swiss prosecutors presumption that the 1898 Congressional joint resolution of annexation successfully annexed the Hawaiian Kingdom. Basically, the prosecutor assumed the U.S. constitution granted the U.S. congress authority to annex a foreign state’s territory. Since that presumption has been rebutted an appeals judge must apply the presumption of continuity of a state’s rights under international law and customary international law. It would be hard to justify recognition based on an unconstitutional act that afforded that recognition in the first place.

Aloha Keokani and Kehoa. What effect do you believe prior U.S. Supreme Court decisions (that have held the annexation was legal) will have on the Upper Appeals Court ? Will they consider the issue anew or will they defer to the U.S. Supreme Courts prior decisions that found that the annexation was constitutional under the laws that existed at that time ? I’d also appreciate knowing why you think this will or will not carry any weight with them. Mahalo.

Franklin Covey in his book “The 7 habits” he states ‘You’ll never achieve a worthy end through unworthy means’. So, it remains to be seen whether the Appeals Court Justices of the Swiss Court will reward us the outcome and resolve we are looking in the view of our Hawaiian Kingdom’s Restoration.

Aloha Frank, there is no guarantee the Judge will revert to politics and not let us prevail but you at least have to exhaust all available options. Even in a loss there is a lesson for the next step of the process. If we follow Covey’s advice like you suggest, then we should just stop right now and give up since that reasoning will be applied to all other venues. I will never give up on our HK, I’m a patriot to the very end.

Aloha no e Kekoa it was not an implication nor did I mean to insinuate relenting on our efforts and struggle to bring about our HK Restoration, the Piko/Summit. This is what I most fervently hope and live for each day. My na Kupuna did too.

The point I was trying to make is that the Swiss Judge was a bit short in his determination, whereby he was lacking in his facts and histrionics on record regarding e.g. the Lili’uokalani Assignment or Cleveland’s Presidential Notes and to that end, having no Treaty of Cession/Annexatiion. (Thus, my Franklin Covey point I alluded to).

His lack of juris prudence will I am sure will be resolved via the upper Appeals Court Judges and their review in the matter and I am very optimistic we will attain the ultimate prudent outcome in our favor.

Aloha Kakou, Let us not forget 1893 Lili’uokalani Assignment and Executive Agreement of Restoration which the U.S. has not complied with their obligation. I believe just that alone would cover a,b,c, and d…. Malama pono…LLHK

Aloha Lonokapu, I agree that the Executive Agreements are important but at the present time we cannot rely on it for sections (c & d). If the U.S. suddenly wanted to comply with the Exec.Agreements what HK gov’t official would they negotiate with? The only entity that was recognized and vetted by international venues pursuant to HK law, law of occupation, international law and well established international doctrines is the AHKG. The AHKG is also the only one actively showing it’s capacity to enter into relations with other states in accordance with section (d). Keokani incorrectly suggested that the other groups were properly created and could be considered a HK gov’t. We have got to understand this stuff, because if we don’t, they can manipulate us. MHO

Aloha Frank, I was a bit confused at first regarding your post because it was the Swiss prosecutor and not a Judge that was a bit short in his determination to abandon the complaint. The appeal which includes the necessary information to rebutt the prosecutors presumption is now before an appeals judge. I’t was just a miscommunication. Mahalo for your post to clarify your position.

How do you then account for the Blount report in which James Blount came to Hawaii to do his invistegation and end the conditions of the occupation via American troop recalled and property being returned to its rightful owner and the American flags removed this everything returned to it station prior to the coup?

I WS born and raised iin hawaii and mom / dad /grandma where born here . my soul is connected to hawaii as my life grows . I was taught Lie’s mix with the truth about hawaii . I don’t know much about sovereignty movement . the past 10 months I tryed to learn as much as I could and thru my research I have a legal question that even the U. S. District attorney in hawaii couldn’t answer , and refuse too give her name and didn’t give a place to get information . she said ” i can’t do that ” I ask for answers to questions and help also her name . I had a strong feeling she would say something like that because of my research . By law and this is a mixum of law I think , but a corporation cannot annex a country or Kingdom . a corporation has no soul to bond or body to incarcerate ,it is fiction a man made idea put on paper . Hawaii is living and nature created it , and the people are living on the land . something dead by lw cannot be attach to the living and made obey . basically I ask what law in the history of man made laws dose a corporation have the right to annex a kingdom of enormous wealth , the force a legal system on the land that enslaves the people also change their way of money management knowingly that it would bankrupt this country ? Please show me law . so Federal reserve created by United States corporation is unlawful and any corporation , agencies ,group’s , institutions ,people , etc. Attach to said corporation needs to pay for damages .

Aloha Godsxadviser, they don’t do it by law they do it by contract. The contract is then enforceable under the law. Under International Law war is legal. That is why they have conventions and the Laws of war to regulate war activity. Examples, War with Mexico and the Spanish American War. They wanted it and they took it by war and got a contract signed by the respective countries. The contract is called a Treaty of Surrender. Countries are political corporations so I guess it could be referred to a hostile corporate take over. Citizens of those countries by there own contract with their gov’t are corporate citizens and subject to those laws. Yes, I agree that a corporation is a man made entity and has no soul, hence the root word “corps” . However, if one chooses to belong to this corporation and receive benefits from it, then they hold a liability as corporate citizens to be subject to it’s law. They would only be bound by God’s laws if they included God in their articles of incorporation.
The U.S. is a political corporation and that is why they have the separation of church and state. They don’t want to be bound by God’s laws, only men’s laws in which they can manipulate.

This is the problem for the U.S. regarding Hawaii. The have neither a voluntary (contract) Treaty by purchase or consent or an involuntary (contract) Treaty of Surrender. They have no legal standing by proof of claim (contract) to the Title of Hawaii and it’s citizens.

Set aside, for the time being, any question regarding whether the US Constitution, explicitly, or implicitly, empowers the US government to annex another “State” by some means other than a treaty.

Set aside, for the time being, whether International law empowers a State to annex another State by some means other than a treaty.

Focus exclusively on the Entity Calling itself the Republic of Hawaii [ECIRH]. Set aside whether it was “in fact and in truth” the government of Hawaii.

Question whether the Constitution of the ECIRH empowered the ECIRH government to enter into a treaty of cession, union, or annexation [i.e. transfer of sovereignty] to the US, we find that the Constitution of the ECIRH authorized and empowered an organ of the Government of ECIRH to do so.

“ARTICLE 32.-TREATIES.
The President, with the approval of the Cabinet, shall have the power to make Treaties with Foreign Governments, subject to the ratification of the Senate.

The President, with the approval of the Cabinet, is hereby expressly authorized and empowered to make a Treaty of Political or Commercial Union between the Republic of Hawaii and the United States of America, subject to the ratification of the Senate.”

But the Constitution of the ECIRH did not empower the government of the ECIRH to transfer sovereignty by any other means other than a treaty. So the sovereignty of Hawaii remains with Hawaii as there is no treaty. No treaty, no transfer. Sovereignty remains.

If the ECIRH was “in fact and in truth” the government of Hawaii, no transfer because the procedure called for by the ECIRH constitution was not followed.
If the ECIRH was not “in fact and in truth” the government of Hawaii, no transfer because not “the government” just a bunch of guys calling themselves a government. They could have just as “effectively” called them Kings.

Your article is historically flawed. Only part of Alaska became under US Imperium by the Treaty of Washington of March 16/30, 1867. That is the same with the Hawai’i.

Remember when the Fourth Kamahamaha at a meeting of the PC annexed Stewart Atoll it was done not by the
a Treaty.

For Alaska one needs to look at it’s first organic
act, viz., Harrison Alaska Organic Act, when the
Alaska Board at the US Department of Treasury
placed territory in the District of Alaska not covered
by Treaty of Washington.

Look also at the status of Midway which was an Hawaiian Island not covered in the Newlands Resolution.

I’m from hawaii and everything i read on the annexation of hawaii is 100 % illegal . What is now known to be call “The Act of 1871 ” in the United States congressional records clearly shows that the United States government is a incorporated government ! I have the document ” The articles of incorporation ” which shows this as fact . American was a bankrupt government that became a franchise corporation . According to international law this is illegal . corporations cannot annex a nation . A bankrupt nation can’t annex one with wealth . Hawaii should create a treaty with Texas and Alaska to allow hawaii to annex them . This will give momentum to a free world . Hawaii could offer this to every state and nation . Then hawaii would give everyone involved aloha and freedom . Also hawaii should also annex the Antarctic because they illegally annex hawaii we legally annex the Antarctic .Hawaii has no treaty with any nation about the Antarctic !